James McCarthy (represented by Travellers Visibility Group, Cork V The Our House Bar, Cork
This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director then delegated the complaint to me, Dolores Kavanagh, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act.
1. Dispute
1.1 This dispute concerns a claim by James McCarthy that on 5 July, 2001, he was refused service in the Our House Bar on the grounds that he is a member of the Traveller community. The respondent does not recall refusing service specifically to the complainant but clearly recalls refusing service to the complainant's two witnesses on or around the date in question.
2. Summary of Complainants' Case.
2.1 The complainant states that he, along with his young son and two nephews, went to the Our House Bar on the afternoon of 5 July, 2001. The complainant ordered a drink and was refused service. It is the complainant's contention that he was refused service because he is a Traveller.
3. Summary of Respondent's Case
3.1 The respondent states that she has no recollection of refusing service to the complainant but clearly recalls refusing service to his two witnesses because of abusive behaviour on their part towards her as she passed them by in the street prior to their entering the pub.
4. Evidence of the Parties
Preliminary issue arising at Hearing.
Immediately prior to the commencement of the Hearing of this complaint the respondent, Ms. Lisa Brooks indicated her surprise at not recognising the complainant. Ms. Brooks explained that she recognised Patrick McCarthy and she had mistakenly assumed from the paperwork in this case that another gentleman was the complainant. This person whom she had in mind had been barred from her premises along with Patrick McCarthy. The actual complainant, James McCarthy was not someone she could recall ever having refused service to.
Ms. Brooks described the person whom she had in mind. Mr. David McCarthy of TVG produced some literature to the respondent which contained photographs of members of the Cork Traveller community and asked Ms. Brooks if the person she had in mind was in the photos. Ms. Brooks quickly identified Michael McCarthy from the photographs. The latter, who was originally scheduled to appear at theHearing as a witness for the complainant, was not present at the Hearing as Mr. David McCarthy of TVG had decided it was not necessary to call him as a witness. Mr. David McCarthy then indicated that Michael McCarthy was nearby and it was agreed that he would call him to the Hearing room. Mr. Michael McCarthy attended shortly thereafter in the capacity of witness for the complainant.
4.1. Complainant's Evidence
Mr. James McCarthy, Complainant
Mr. McCarthy stated that:-
- He is a member of the Traveller community.
- On 5 July, 2001 he was travelling from his sisters house in Cork to his home at lunch time. His young son became thirsty during the drive. The complainant parked the car in Shandon Street and went, with his son and two nephews (both adults) to the Our House Bar to get a drink of minerals for the child.
- When he entered the respondent premises the complainant ordered a drink and was refused service and told to leave the premises immediately.
- The complainant and his companions left the premises without querying the reason for the refusal and went straight home.
- As the complainant has never been involved in any incident in his life with the exception of one occasion when he was attacked and for which he received compensation, he feels that the only reason for the refusal of service in the Our House Bar was because he and his companions had been recognised as Travellers.
- The complainant dose not recall who refused service.
- The list produced by the respondent does refer to him, (name and date of birth details confirmed), the complainant, but is irrelevant in the context of the complaint at hand.
Mr. Michael McCarthy, witness for the complainant
Mr. McCarthy stated that:-
- He is the complainant's nephew and was with the complainant when the refusal of service took place.
- The group were on their way home from his aunt's house (the complainant's sister) when they decided to pull in for a drink in Shandon Street. The adults wanted a drink. They did not stop off just to get a drink for the child. They went to the Our House Bar.
- Mr. M. McCarthy had been to the premises a number of times previously and had never been served there. He did not think to mention this to his uncle, the complainant. He, Michael McCarthy did not expect to be turned away on this occasion.
- The incident described by the respondent never happened. Mr. M. McCarthy would not enter a premises after behaving in such a manner, and would not expect to be served if he did.
- Mr. M. McCarthy had been a regular in another bar (named) adjacent to the respondent premises and had never been involved in any incident whatsoever in that premises or in any other incident in his life. It is several months since he has been to the premises in question.
Mr. Patrick (Ter) McCarthy, witness for the complainant
- Mr. P. McCarthy confirmed that the group had been en route home from his aunt's house on the day in question when they stopped off to get a drink of minerals for the complainant's son.
- He, Mr. P. McCarthy, had been to the Our House Bar a few times previously and was refused service each time. He thought he would try it anyway, and did not think to mention to his uncle, the complainant, that he had been refused in the bar previously.
- There was a girl serving behind the bar, but Mr. McCarthy does not recall what she looked like.
- The girl behind the bar told them to leave immediately. The group went to another bar across the road where they were also refused service. They decided to go straight home after that as they live only a short distance from Shandon Street. Summary on behalf of complainant by Mr. David McCarthy Travellers Visibility Group, Cork
- Mr. McCarthy stated that he deplored the actions of whoever was responsible for the wolf whistling incident described by Ms. Brooks. However, the fact remained that the respondent and her husband could not recall the complainant and could not therefore refute the complaint of discrimination.
4.2 Respondent's Evidence
Ms. Lisa Brooks, Respondent
Ms. Brooks stated that:-
- She and her husband are the owners of the Our House Bar, Cork. It is a very small quiet premises with a mainly elderly clientele.
- She does not recall refusing service to the complainant but is quite clear in her recollection of refusing service to Michael McCarthy and Patrick McCarthy on a date (specific date unknown) in Summer 2001.
- The reason for the refusal was the behaviour of Michael and Patrick McCarthy on the day in question. Ms. Brooks had gone to a shop a short distance from the bar to get groceries. On her way back to the bar Patrick and Michael McCarthy were standing in the street opposite the bar with some others. They began to catcall and whistle at her. Michael McCarthy had shouted out "I'll have you on your back". Ms. Brooks felt a bit intimidated by this behaviour.
- When she entered the bar she was a bit flustered and her husband asked her what was wrong. She told him what had happened.
- A few moments later Patrick and Michael McCarthy entered the bar and ordered drinks. Ms. Brooks told them "not today lads". Michael McCarthy asked her "what's your problem?. She told him that he must be joking after the way he had behaved and that she was barring him.
- Michael McCarthy said "we'll have you for this" and left. When Ms. Brooks received notification of the complaint she thought that this was what Michael McCarthy meant by this statement.
- Ms. Brooks explained that she was the only female working in the bar in the Summer of 2001. She clearly recalls serving both Michael and Patrick McCarthy on occasions prior to barring them.
- The bar does not have a policy of discriminating against Travellers. Ms. Brooks named members of five Traveller families who are served in the bar. She explained that some members of the families in question are barred for misbehaviour but others from the same families drink in the premises.
- Ms. Brooks described an incident, in an adjoining premises, which occurred after the barring of Michael and Patrick McCarthy, whereby in the course of a christening celebration, a fight broke out among members of the McCarthy family. The fight, involving Michael McCarthy, had spilled out into the street. Ms. Brooks had found it necessary to lock the doors of her premises to ensure that the fight did not enter the Our House Bar. Her customers at the time were terrified. Ms. Brooks was relating this incident to show that Michael McCarthy had been involved in an incident while he stated that he had not.
- Ms. Brooks produced a paper, naming the complainant, which listed a number of offences of which the complainant had been convicted. Ms. Brooks declined to state where she had obtained this list.
Mr. Gordon Brooks, witness for Respondent.
- Mr. Brooks confirmed his wife's account of events with regard to Patrick and Michael McCarthy. He had not witnessed either of them shouting at his wife but could confirm that she had related what had happened to him and the subsequent refusal of service to both. Mr. Brooks does not recall the complainant at all.
5 Matters for consideration
5.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3 (1)(a) or and 3 (2)(i) of the Equal Status Act 2000 in terms of Section 5 (1) of that Act.
5.2 Section 3 (1)(a) provides that discrimination shall be taken to occur where: "On any of the grounds specified.......a person is treated less favourably than another person is, has been or would be treated".
5.3 Section 3 (2) provides that: "As between any two persons , the discriminatory grounds (and the description of those grounds for the purposes of this Act) are: ......... (i) that one is a member of the Traveller community and the other is not."
5.4 Section 5 (1) states that "a person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public ".
5.5 At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Membership of a discriminatory ground (e.g. the Traveller community ground)
(b) Evidence of specific treatment of the complainant by the respondent
(c) Evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
5.6 In considering what constitutes a prima facie case, I have examined definitions from a number of sources. In Dublin Corporation v Gibney (EE5/1986) prima facie evidence is defined as: "evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination had occurred." In article 4 of the EC Burden of Proof Directive (Council Directive 97/80/EC) the following definition appears: "when persons who consider themselves wronged..... establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination". In Teresa Mitchell v Southern Health Board, (DEE011, 15.02.01), the Labour Court interpreted article 4 of the EC Burden of Proof Directive as follows: " This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court , and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as fact one or more of the assertions on which her complaint of discrimination is based. "
6. Conclusions of the Equality Officer
6.1 I am satisfied that the complainant is a member of the Traveller community in accordance with (a) at 5.5 above and this is not disputed by the respondent. The complainant has provided written and oral evidence of refusal of service which has not been refuted by the respondent and this fulfils (b) at 5.5 above.
6.2 In order to establish whether key element (c) at 5.5 above has been satisfied it is necessary to examine the evidence given by the complainant and the witness on his behalf.
6.3 The complainant stated that he stopped off to buy a soft drink for his son on the day in question. In doing so he stopped off in a very busy city centre location and took his then five year old son to a bar. The complainant did not seek to enter any restaurant, snack bar or grocery shop to obtain the drink for his son. Under questioning the witnesses for the complainant stated that they stopped off for a drink for themselves and not just for the child and it was for this reason they elected to go to a bar.
6.4 The bar they selected was one in which both witnesses had experienced multiple refusals previously, according to their evidence but they did not think that this was relevant in choosing a bar to go to, although the bar next door had served them previously.
6.5 When refused service nobody in the group sought to establish why they were refused and made no attempt to protest the refusal.
6.6 The complainant stated that the group went straight home after the refusal of service. Patrick McCarthy, following a short recess in the Hearing, stated that the group had gone to another bar after the refusal in the Our House Bar and had also been refused there. After the refusal of service in the second bar, Patrick McCarthy stated that the group went home.
6.7 Neither Patrick nor Michael McCarthy thought it relevant to mention to the complainant that the bar they had chosen to go to was one in which they state that they experienced multiple refusals.
6.8 The complainant, when asked if he had ever been involved in any incident in the respondent premises stated that he had never been involved in any incident in his life. He was quite clear in this. However, when the respondent produced a list of offences for which the complainant had been convicted, the complainant did not refute any of the details on the list. I would emphasis in the strongest possible terms that the incidents listed could not have affected a decision to refuse the complainant service as those details only became known to the respondent long after the alleged refusal. What the list does demonstrate is that the complainant lacks credibility. He had denied ever being involved in any incident with the exception of one in which hewas the victim.
6.9 While the respondent cannot recall the complainant or any refusal of service to him she was quite clear in her recollection of Patrick and Michael McCarthy and the reasons why she refused them service and barred them. So much so that, prior to the commencement of the Hearing, in the absence of Michael McCarthy, she described Michael McCarthy perfectly and selected his photograph from literature supplied byTVG for that purpose. The respondent could not have done so unless she knew Mr. Michael McCarthy. Taking all of the evidence into consideration I am not satisfied that the complainant has established that the reason for the refusal of service, if it occurred, was based on his Traveller status. I am satisfied that the respondents evidence was more compelling than that of the complainant, that Michael and Patrick McCarthy are well known to the respondent and that it is possible that the complainant was refused service for being in the company of persons who had been barred from the respondent premises previously, or on the day in question, for unacceptable behaviour. The complainant has provided no compelling contradictory evidence to show that therefusal was based on a discriminatory motive. I am satisfied that Michael and Patrick McCarthy were aware that it was likely, given that they had been refused service in the respondent premises previously for whatever reason, that they would be refused on 5 July 2001. I do not think it unreasonable in light of the evidence presented to find that it quite possible that Patrick and Michael McCarthy went to the Our House Bar in the knowledge that a refusal of service was, in fact, likely to occur and would or might apply to those in their company as well as themselves. I am satisfied that service would be refused to non-Travellers in the same or similar circumstances.
Decision
I find that the complainant has not established a prima facie case of discrimination on the Traveller community ground and contrary to Section 3(1) and 3(2)(i) of the Equal Status Act and in terms of Section 5(1) of that Act. The Decision is in favour of the respondent
__________________________
Dolores Kavanagh
Equality Officer
9 September, 2003